ATTORNEY GENERAL v. MARK ANTHONY SEABROOK

----------

-----------------

JUDGMENT

-----------------

Sir Derek Cons, Ag. C.J., delivered the judgment of the Court:

1. Mark Anthony Seabrook ("the Defendant") was convicted by a jury before Judge Saied, as he then was, sitting as a Deputy Judge of the High Court, of indecent assault upon a woman and fined $5,000.  Earlier today we refused his application for leave to appeal the conviction saying that we would give our reasons in the course of dealing with this Application for Review of the sentence brought by the Attorney General, with the leave of the Chief Justice, on the ground that the sentence was wrong in principle and manifestly inadequate.

2. The lady assaulted was a Miss Tse. On the 19th of July last year she was working as a waitress in a nightclub in Tsimshatsui East. She finished her tour of duty at about 5 o'clock in the morning, then came over to this side to an establishment in Wanchai in order to have something to eat. There she met the Defendant, whom she had known previously when she herself worked in the same establishment. The Defendant certainly had been drinking to some extent and possibly Miss Tse as well.

3. There was at the trial some dispute as to exactly, what occurred or what was said between the moment she entered the establishment on this side and sometime later when the two were in Miss Tse's flat in Happy Valley. But it is common ground that they reached there by means of a taxi and that once inside Miss Tse showed the Defendant around her home which he had not seen before. The evidence of Miss Tse thereafter, in a nutshell, is that the Defendant having refreshed himself with a shower and some sleep came, with no clothes on, into the kitchen where she had been washing up some crockery and insistently suggested that they should have sexual intercourse. On her ignoring his suggestion she said that he lost his temper and attacked her violently. She managed to escape to the balcony crying for help but he dragged her back into the kitchen, bore her to the floor, hitting her and ripping open her blouse and bra. He then kissed her breasts but, being unable to get her jeans off, finally desisted and after striking her a few more times dressed himself and left the flat.

4. There was evidence from the lady who lived in the floor above, which was read out by agreement at the trial, which confirmed the disturbance, which the witness had thought to be simply a quarrel between a man and his wife.

5. The Defendant's evidence was that this was not the first occasion that he and Miss Tse had been together in the early hours of the morning. He said there was a previous occasion, this time at his flat, when she had gone as far as disrobing herself down to her petticoat and generally flaunting her body before him. He said that being excited by that he had invited her to bed, to which she had agreed, but in the event left without joining him there because he fell asleep waiting while she had a shower.

6. Miss Tse agreed that there had been an earlier occasion when she went to his flat in the early hours of the morning, but her version was that, although she had gone to sleep on his bed, she left in fright when he suggested that he should go to bed with her. She attributed the removal of her dress on that occasion to the excess heat of the room.

7. The Defendant said that on the instant occasion Miss Tse had again agreed to intercourse but suggested that he should take a shower first, which he did, and while he was doing so she in fact brought him a glass of beer and handed it to him in the shower. Thereafter, with a towel wrapped around him, he joined her in the kitchen where he found her with the top buttons of her blouse undone, exposing the upper part of her breasts and her bra. He said that again she flaunted herself before him and enquired in particular whether he would like to see her breasts; and then teased him that he could not do so because he had a Japanese girlfriend. His reply was to put his hand on each of her breasts with his fingertips inside her bra and say that he could see them anytime he wanted. Unfortunately at that moment she backed away and the bra came apart in his hands. At that, he said, she suddenly became. hysterical, flew screaming at him, clawing and trying to hit him. He defended himself, caught hold of her hands and tried to quieten her down. The injuries which she undoubtedly received were caused as he struggled to calm her and to prevent her from at one stage, as he thought, trying to jump over the balcony. Eventually he succeeded in quietening her and at that he dressed himself and left the flat.

Conviction

8. The basis of the appeal against conviction is that on the whole of the evidence this Court should entertain what has come to be called a lurking doubt that the conviction was truly justified. Our attention has also been drawn to two questions which the jury put to the judge below after they had first retired to consider their verdict:-

"If the defendant was in his own mind one hundred per cent sure that by placing his hands inside the woman's bra he would not be rejected, has he committed indecent assault? Further, even if he is sure in his own mind but does this act in reckless and obtrusive manner, has he committed indecent assault?"

With respect to the judge below he did not answer the questions as one might have expected him to, i.e. by a simple negative answer to the first and a short explanation on the second that the manner in which an indecent assault is committed is irrelevant to the guilt of the offender, except in so far as it might indicate the state of his mind as to the consent or otherwise of the victim. Instead the judge repeated the directions which he had given earlier with regard to the subjective nature of the test as to the Defendant's belief in the victim's consent and to the possibility that he might have been reckless thereto in the sense of "couldn't care less".

9. It is suggested that the questions themselves and the short time thereafter which it took the jury to reach their verdict should cause us some unease. However we have no idea of the circumstances within the jury room which prompted the request for further directions or how the particular words in which the questions were finally framed came to be chosen. On their face they do not necessarily indicate any misunderstanding and the jury were in fact correctly directed, as is frankly conceded by counsel for the defence. It was then for the jury to apply those directions to the facts as they found them from the evidence. We have not been supplied with a full transcript of that evidence. The outline we have given above is instead taken from the detailed resume contained in the summing up.

10. Decisions on lurking doubt are seldom capable of elaborate or even any discussion. All we can say in the present instance is that we ourselves feel no anxiety as to the verdict.

Sentence

11. We then turn to the application for the review of sentence.  We may say at once that if the version put forward of the circumstances that early morning by Miss Tse were the correct basis for sentence, then we would have no hesitation in accepting the submission of Mr. Cross for the Attorney General that the sentence actually imposed was both manifestly inadequate and wrong in principle.

12. But we do not think that version is the correct basis. On the evidence that we have recited there were two options open to the jury. One was to accept the version put forward by Miss Tse; the other was to accept the version proffered by the Defendant, save as to the state of his mind when he took hold of her bra. If the jury were satisfied that at that moment he either knew that she was not willing for her breasts to be exposed or was indifferent to whether she was willing or not, he would be equally guilty of indecent assault as if the jury had accepted the story told to them by Miss Tse.

13. In a situation of this kind, where a jury may have come to its decision upon more than one factual situation, it is the duty of the judge, for sentencing purposes, to decide for himself from the evidence that he has heard together with the jury what is the correct factual situation: R. v. Riccardo Tonti unreported Crim. App. No. 174/88 6th July 1988. Unfortunately the judge below did not  undertake that exercise. He attempted instead, with the assistance of counsel who then appeared for the Defendant, to deduce what the jury might have had in mind and concluded that they

"rested their decision on your conduct being reckless, that is, couldn't care less."

14. However we feel, from the general tenor of his summing-up and from subsequent remarks passed by him as to Miss Tse's conduct and behaviour on that and the earlier occasion, that had the judge addressed his mind specifically to the question, he would undoubtedly have answered it in favour of the Defendant. We therefore do not think it necessary to remit the matter to him now for further consideration, but shall proceed to consider the sentence on the assumption that events occurred generally as the Defendant testified, save that he overrode her right not to be molested when he took hold of her bra. In doing so we cannot overlook the fact that the state of his mind at that time must to a large extent have been induced by Miss Tse's conduct on that and the earlier occasion, and in particular, by how she had behaved and spoken immediately before he acted. Taking these matters into account we are not persuaded that a prison term was called for or that the fine which the judge thought fit to impose - a fine being in effect the only other option open to him - was manifestly inadequate. In that circumstance it is not necessary to call on counsel with regard to the further matter which we asked them to prepare. We apologize for the unnecessary effort we have caused and hope that the effort will nevertheless prove useful on some other occasion. We refuse the Application for Review.